O Father, Who Art Thou?

During the last decade, Swiss, German, Austrian and French companies and their governments paid some $8 billion to Jewish and non-Jewish victims of the Third Reich, disgorged thousands of dormant bank accounts, finally honored prewar insurance policies and returned confiscated property and artwork.

The Europeans paid reparations for their conduct during World War II, and restituted property even though their legal liability more than half a century later stood on shaky grounds. They did so in significant part because the American government insisted that they had a moral and historical responsibility to those they wronged.

Now, however, the shoe is on the other foot in the “Hungarian Gold Train” case. The American government is being sued by Jewish survivors for alleged improper handling of assets stolen from them by the pro-Nazi regime in Hungary. Faced with righting what may be America’s historical wrong, the Justice Department has forgotten our own message to the world, and is relying on strict legal arguments to escape responsibility.

This is the wrong approach and should be corrected immediately, lest we lose the moral high ground that was indispensable to achieving our agreements — and that remains essential today to ensure our agreements are honored and that other human rights violations are taken seriously.

The U.S. Army was not only heroic in winning World War II, but also had an enviable postwar record in recovering Nazi-looted property. Unlike the Soviet Union, which took away valuable paintings and cultural property as war booty, the American government never tried to enrich itself as the victorious power. In accordance with international legal principles and American policy, art and cultural property was returned to the countries from which it had been taken. In turn, those countries were expected to return the property to the citizens from whom it had been confiscated.

But in regard to the Hungarian Gold Train, the American government followed a starkly different policy. The train, totaling 24 rail cars and holding countless Hungarian Jews’ valuables that had been confiscated by the pro-Nazi Hungarian government, was seized by the U.S. Army in Austria in mid-May 1945, just after the war had ended. Despite constant appeals for years by the post-war Hungarian government and the official Hungarian Jewish organizations to return the property — even to simply permit an examination of the valuables — the American government refused. Even the American Legation to Hungary questioned Washington’s refusal.

Instead, the U.S. Army declared the Gold Train assets “enemy property” unidentifiable as to individual ownership and national origin, making restitution infeasible. Instead of returning the property to the Hungarian government, as the French army did with other Jewish assets it seized after the war, some senior American military officers requisitioned the property to furnish their apartments in Austria. Other items, such as watches, alarm clocks and cameras, were sold through Army Exchange stores in Austria. More than 1,100 paintings, some with impressive credentials, were transferred by the U.S. Army to the Austrian government. A substantial amount of property was sold for auction in New York, with proceeds transferred to the International Refugee Organization to benefit Holocaust survivors. A small number of items simply were stolen.

None of the property, however, was returned to the large surviving Hungarian Jewish community from whom the Gold Train assets had been confiscated.

After successfully urging more than 20 countries to establish historical commissions to examine their role in dealing with looted Nazi assets, President Clinton followed my recommendation to create our own Presidential Advisory Commission on Holocaust Assets in the United States. The commission, headed by Edgar Bronfman — who played a critical role in exposing the misuse of Jewish bank accounts by Swiss banks — first publicly disclosed the disturbing facts about the Hungarian Gold Train in an interim report in 1999 and in a later report in December 2000. The Bronfman-led commission, in which I served as a commissioner, did not flinch from exposing misjudgments by the American government — just as the Clinton administration did not hesitate to do for so many years with other countries.

Our disclosures led to a private class-action lawsuit, Irvin Rosner et al v. United States, by more than 3,000 Hungarian Holocaust survivors against the American government, seeking an accounting of the contents of the Gold Train; a search of U.S. Army posts for the valuables and the return of any Gold Train property still in government hands; and up to $10,000 in damages from each member of the class of Hungarian Jewish survivors.

Instead of acting as we had urged foreign government and their companies to act, instead of even calling for an investigation of the facts to establish whether there truly was the kind of culpability our presidential commission found, the American government moved to dismiss the case on the basis of the statute of limitations, the sovereign immunity of the United States and the inappropriateness of the federal court system as a proper forum for these claims. The government has subjected elderly survivors to rigorous depositions, and has used an expert witness, the chair of Tel Aviv University’s Jewish history department, to contest some of our commission’s findings and the plaintiffs’ more sensational allegations.

Even if the Hungarian Gold Train case is questionable on legal grounds, and even though some of the facts remain contested, the moral claim by the survivors that their assets were not returned is solid. What, then, should be done now?

For starters, the mindset of the Bush administration’s Justice Department must change. We must hold ourselves to the same rigorous moral and historical accountability to which we have held foreign governments and their corporations. This was the basic argument made by a bipartisan group of 17 senators, including Hillary Rodham Clinton of New York and Trent Lott of Mississippi, in a recent letter to Attorney General John Ashcroft.

As reported in these pages two weeks ago, U.S. Federal Judge Patricia Seitz granted part of the Justice Department’s motion to dismiss the Hungarian Gold Train case, but denied other parts and has ordered the United States to submit to mediation. The Justice Department should now take the opportunity to allow the mediator to review all the records and documents and to weigh the contested facts, including the amount of Hungarian Jewish assets that was actually on the Gold Train.

Of course, it will be almost impossible for survivors to identify individual items that were confiscated from them and to determine which items made their way onto the Gold Train. That is why the Bush administration should apply the same “rough justice” concepts we used in negotiating with the Germans, Austrians, Swiss and French — this time, for the benefit of Hungarian Jewish survivors in the United States, Israel and Hungary.

After all, it was no easier for slave and forced laborers of German and Austrian companies to identify their employers. Yet German and Austrian corporations and their respective governments met their responsibility and paid billions of dollars to survivors, Jews and non-Jews alike. The French government likewise faced its moral responsibility to those victimized by Vichy France.

Justice would be served if the mediator appointed by Seitz was permitted to make a recommendation to the parties, Congress held a hearing on the mediator’s findings and on competing allegations, and President Bush asked Congress for a reasonable lump sum payment to be allocated on a per capita basis to living Hungarian Holocaust survivors who file an affidavit identifying their moveable property that was taken in April 1944 by the pro-Nazi regime.

Obviously, the American government is only responsible for what it seized on the Gold Train and failed to return. And the amount should reflect that some of the assets were sold for the benefit of Holocaust survivors in the United States, a small number of whom were Hungarian Jews. The amount, however, is less important than establishing the principle that the United States will hold itself to the same standard to which we have held others.

And importantly, a simple, straightforward apology should accompany the payments for what was likely a singular deviation from the otherwise sterling conduct of the American military after World War II. The United States will then be in a stronger position to continue to urge other countries to meet their responsibilities — and we will have proved that when the shoe is on our foot, we can wear it.

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